Patton v. Astrue

Filing 24

MEMORANDUM. Signed by Judge Gregory M. Sleet on 7/10/2015. (mdb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE

JUNE A. PATTON,
Plaintiff,
v.

MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.

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Civil Action No. 1:12-921-GMS

MEMORANDUM
I.

INTRODUCTION
The pl~intiff June A. Patton ("Patton") filed applications for disability insurance benefits

("DIB") and supplemental security income ("SSI") on July 11, 2006, pursuant to Titles II and
XVI of the Social Security Act. (D.1. 11 at 190-200.) The Social Security Administration
("SSA") denied Patton's applications initially and upon reconsideration. (Id. at 121-28, 13342.) Patton requested a rehearing before an Administrative Law Judge ("ALJ"), which took
place on July 23, 2008. (Id. at 34-63). On March 23, 2009, the ALJ, Barbara K. Powell, issued
a written decision denying Patton's DIB and SSI claims. (Id. at 102-16.) Subsequently, the
Appeals Council vacated the ALJ's decision and remanded Patton's claims for further
consideration. (Id. at 119.) A supplemental hearing occurred on September 27, 2010. (Id. at
66.) On October 20, 2010, ALJ Powell issued a written decision once again denying Patton's
DIB and SSI claims. (Id. at 13-27.) Subsequently, the Appeals Council denied Patton's request
for review. (Id. at 1-5.)

On July 18, 2012, Patton filed this action against defendant Michael J. Astrue, former
Commissioner of Social Security ("the Commissioner"), 1 for a review of the final decision
denying her DIB and SSI applications. (D.I. 1.) Presently before the court are the parties' crossmotions for summary judgment. (D.I. 14; D.I. 19.) For the reasons that follow, the court will:

(1) grant Patton's motion for summary judgment; and (2) deny the Commissioner's motion for
summary judgment.

II.

BACKGROUND
Patton was born on June 25, 1967. (D.I. 11 at 243.) Patton alleged disability due to

depression, anxiety, a heart condition, and chest pain. (Id. at 255.) Patton's alleged onset date of
disability is January 1, 2006. (Id. at 13.)

A.

Physical Impairments

On February 3, 2007, Dr. Irwin L. Lifrak performed a consultative examination on Patton
at the request of the State Disability Determination Services. (Id. at 466.) Dr. Lifrak noted
Patton walked with a limp favoring her left side. (Id. at 468.) In addition, Dr. Lifrak found a
limited range of motion in both her knees and hips as well as in the lumbosacral region. (Id. at
469.) Dr. Lifrak diagnosed Patton with degenerative joint disease of the bilateral knees and
potential disc damage. (Id.)
On May 30, 2007, Dr. Richard D' Alonzo examined Patton with regards to Patton's
complaints of bilateral knee pain. (D.I. 12 at 713.) Dr. D' Alonzo found crepitation in Patton's
knees and diagnosed her with mild tracking of the patella with subluxation and chrondromalacia.

1
Carolyn W. Colvin replaced Michael J. Astrue on February 13, 2013, after Patton initiated this action.
Although pursuant to Federal Rule of Civil Procedure 25, Carolyn W. Colvin should be substituted for Michael J.
Astrue, pursuant to 42 U.S.C. § 405(g), no further action is necessary to continue this action.

2

(Id.) Dr. D' Alonzo remarked that Patton was not a good surgical candidate due to her weight,

and instead recommended a diet program and strengthening exercises. (Id.)
Dr. James Rubano, an orthopedic specialist, examined Patton from 2007 to 2009. (Id. at
709-16.) In response to Patton's complaints of bilateral knee pain, Dr. Rubano treated her with
knee braces, physical therapy, and cortisone injections.

(Id.)

An MRI on April 28, 2009,

showed evidence of patellar degeneration, and Dr. Rubano's overall impression was bilateral
knee arthritis. (D.I. 11 at 16, D.I. 12 at 817, 821-25.) On September 15, 2009, Dr. Brian Brice
performed a consultative examination on Patton at the request of the State Disability
Determination Services. (D.I. 12 at 817-18.) Patton reported having difficulty with climbing
stairs, carrying groceries and "walking over a block." (Id.) Furthermore, Patton related that she
was using a single-point cane for stairs. (Id.) Dr. Brice's impression was a history chronic
bilateral patellar chrondromalacia with chronic pain. (Id.) In October 2009, Patton injured her
foot, however, an X-Ray showed no acute fracture or dislocation. (Id. at 971-91.)
On July 14, 2010, Patton underwent surgery for posterior tibial tendon dysfunction. (Id.
at 918.) Furthermore, a lumbar spine MRI conducted on September 10, 2010, demonstrated
underlying scoliosis and diffuse spondyltic changes with lateral extension of disc bulge towards
the neural foramina, particularly at the L3-4 and L4-5 levels. (Id. at 971-91.)
Patton is five feet, three inches tall and, at the time of the 2010 supplemental hearing,
weighed 180 pounds. (D.I. 11 at 17.) This equates with a Body Mass Index (BMI) of 31.9,
which is consistent with obesity. (Id.) The ALJ considered the additional and cumulative effects
of Patton's obesity in assessing her other impairments. (Id.)

3

B.

Mental Impairments

Patton has a history of panic attacks and headaches beginning in December 2004. (Id. at
367-86.) On June 26, 2006, Patton presented to the Christiana Care Health Services emergency
department with suicide ideation and symptoms of depression and anxiety due to her boyfriend
leaving. (Id. at 445-53.) Patton agreed to attend a partial hospitalization outpatient program.
(Id. at 453.)

On August 29, 2006, Patton sought treatment for her mental health impairments at
Connections CSP, Inc., where she began seeing Chuck Chaney, a nurse therapist. 2 (D.I. 12 at
529.) Mr. Chaney assessed Patton with a GAF score of 50 and diagnosed her with recurrent
depression. 3 (Id.)

Mr. Chaney's treatment records demonstrate that Patton suffers from

intermittent exacerbations of symptoms due to situational family stressors .. (Id. 514-40, 76286.) Mr. Chaney's treatment notes for the remainder of 2006 indicate Patton's increased anxiety,
however, they also demonstrate she responded well to medication. (Id. at 515.)
Dr. Ramnik Singh examined Patton in January 2007.

(D.I. 11 at. 461.)

Dr. Singh

diagnosed Patton with major depressive disorder and found she had ''moderate" limitations in all
areas4 except for a finding of no limitation in deterioration of personal habits. (Id. at 464-65.)

2

Mr. Chaney's qualifications include: MSN, APRN, CNS, and BC. (D.I. 12 at 529.)
Throughout her decision, the ALJ mistakenly reported Mr. Chaney's assigned GAF Score as 60. GAF
stands for "Global Assessment of Functioning"; it is a statistical tool used by the healthcare providers to measure a
person's ability to function. The scale ranges from 1 to 100, in increasing ability to function. A score of 50
indicates: "Serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any
serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job)." See
Diagnostic and Statistical Manual of Mental Disorders 34 (4th ed., text rev. 2000). A score of 60 indicates:
"Moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) OR moderate difficulty in
social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers)." Id.
4
Areas included: ability to relate to other people, perform activities of daily living, constriction of interests,
comprehend and follow instructions, perform work requiring frequent contact with others, perform work where
contact with others would be minimal, perform simple or complex tasks, and perform repetitive or varied tasks.
(D.I. 11 at 464-65.) "Moderate" is defined as "an impairment which affects but does not preclude ability to
function." (Id.)
3

4

Patton continued to struggle with psychosocial stressors from 2007 to 2009. (D.I. 12 at
775.) Mr. Chaney's treatment notes from March 2007 indicate irritability, agitation, and mood
instability. (Id. at 775.) Mr. Chaney described Patton's mood as stable and normalized in May
2007, though, Patton experienced a recurrence of depression and flat affect in June 2007. (Id. at
768, 537.) In November 2007, Patton returned to Connections, after being unable to attend in the
interim due to insurance issues, and she presented as "[v]ery distressed." (Id. at 768.) Patton
continued to struggle with depression and anxiety throughout 2008 and 2009, however, Mr.
Chaney often noted that Patton was "doing well" and "dealing with the stress quite
appropriately."

(Id. at 763-64.)

Mr. Chaney reported in May 2009 that Patton had been

noncompliant in keeping her appointments but generally faithful in taking her medication. (Id. at
795.)

Mr. Chaney's follow-up notes in

O~tober

2009 reveal that Patton was "mildly

melancholy" and overwhelmed with issues due to her son.

(Id. at 901.)

Additionally, in

November 2009, Patton experienced an episode of increased depression and anxiety. (Id. at
901.)
Mr. Chaney completed a "Medical Source Statement" on Patton's behalf in October
2008. (Id. at 787-92.) Mr. Chaney concluded that Patton had "poor" or no ability in the areas of
completing a normal workday and work week without psychologically based symptoms,
accepting instructions and responding appropriately to criticism from supervisors, dealing with
normal work stresses, and dealing with the stress of semiskilled and skilled work; a "fair" ability
to maintain attention for two-hour segments, maintain regular attendance and be punctual within
customary work tolerances, make simple work-related decisions, understand remember, and
carry out detailed instructions, set realistic goals or make plans independently of others; and a
"good" ability to interact appropriately with the general public, maintain socially acceptable

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behavior, and adhere to basic standards of neatness and cleanliness. 5 (Id.) Furthermore, Mr.
Chaney stated that Patton had "moderate" restrictions in daily living and would be absent from
work "[m]ore than three times a month." (Id.)
C.

The ALJ's Findings

On October 20, 2010, the ALJ concluded that Patton was not disabled. (D.I. 11 at 27.)
At Step One of the sequential evaluation process, Patton was not found to have engaged in
substantial gainful activity since January 1, 2006, the alleged onset date. (Id. at 15.) At Step
Two, the ALJ determined Patton had the following severe impairments: degenerative joint
disease, degenerative disc disease, bilateral pes planus foot deformity, depression, anxiety, and
obesity. (Id.)
At Step

Thre~,

the ALJ determined Patton did not have an impairment or combination of

impairments that met one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1.
(Id. at 18.)

According to the ALJ, Patton's medically determinable mental impairments of

anxiety and depression caused a mild to moderate limitation in her ability to perform basic
mental work. (Id.) In making this evaluation, the ALJ considered four broad functional areas: 6
(1) daily living, (2) social functioning, (3) concentration, persistence or pace, and (4)
decompensation. (Id.) The ALJ determined Patton had a ''mild" restriction in activities of daily
living, "moderate" difficulties in social functioning and concentration, persistence or pace, and
no extended periods of decompensation. (Id. at 18-19.) Furthermore, the ALJ found that Patton
had the residual functional capacity ("RFC") to:

5
"Poor" is defined as "no useful ability;" "Fair" is defined as "seriously limited, but not precluded;" and
"Good" is defined as "limited but satisfactory." (D.1. 12 at 789.)
6
The four broad functional areas are found in the disability regulations for evaluating mental disorders and
section 12.00C of the Listing oflmpairment. (D.I. 11 at 19; 20 C.F.R. § 404, subpt. P, app. 1.) They are known as
the "paragraph B" criteria. (D.1. 11at19.)

6

perform a range of sedentary work ... with lifting and/or carrying 10 pounds,
standing and/or walking in excess of two hours but less than six hours in an eighthour workday, sitting six hours, with a sit/stand option, occasional
pushing/pulling with the lower extremities, occasional use of cane and crutches,
occasional postural activities, no hazards such as dangerous heights or machinery,
no ladders or scaffolds, no concentrated exposure to temperature extremes, and is
limited to simple, routine, unskilled work with less than occasional interaction
with the general public and supervisors and would have difficulty accepting
criticism from supervisors.
(Id. at 19.) In forming the RFC, the ALJ follows a two-step process: (1) Determining whether

there is an underlying medically determinable physical or mental impairment that could
reasonably be expected to produce the claimant's pain, and (2) Evaluating the intensity,
persistence, and limiting effects of the claimant's symptoms to determine the extent to which
they limit the claimant's functioning. (See Id. at 20.)
At Steps Four and Five, the ALJ found that Patton was unable to perform any past
relevant work; nonetheless, there were a significant number of jobs in the national economy that
Patton could perform. (Id. at 26.) Relying on the Vocational Expert's ("VE") testimony, the
ALJ concluded that Patton could serve as a table worker, a final assembler, or a bench hand. (Id.
at 27.) Thus, the ALJ concluded that Patton was not disabled from January 1, 2006, through
October 20, 2010. (Id.)
In reaching her conclusion, the ALJ assigned varying weight to Patton's medical sources.

The ALJ assigned significant weight to the opinions of Dr. Lifrak, Dr. Brice, and Dr. Singh, as
they personally examined Patton and their opinions were based on familiarity with the Social
Security Rules and Regulations. (Id. at 23.) Moreover, the ALJ stated these opinions were
supported by medically acceptable clinical and laboratory findings and were "consistent with the

7

record when viewed in its entirety, including Mr. Chaney's treatment records showing a GAF
rating of 60."7 (Id.)
The ALJ did not afford Mr. Chaney's opinion significant weight. (Id. at 24.) Although
Mr. Chaney is not an "acceptable medical source" as defined at 20 CFR 404.1513(a), 416.913(a),

and SSR 06-03p, his opinion was still weighed as evidence in accordance with 20 CFR
404.1513(d), 416.913(d). (Id.) According to the ALJ, Mr. Chaney's Medical Source Statement
was "inconsistent with the residual functional capacity as determined, as it [was] not supported
by [Patton's] GAF assessment of 60 8 by not only Mr. Chaney but also Dr. Singh and [was]
inconsistent with the treatment records in the exhibit file which show non-compliance despite
improvement with medications and psychotherapy." (Id.) The ALJ determined there was no
basis for Mr. Chaney's assessment of a moderate restriction in activities of daily living, and
furthermore, that his reference to a history of suicide attempts was merely based on Patton's
subjective statements. (Id.) Although the ALJ did not assign significant weight to Mr. Chaney's
opinion that Patton would likely miss work more than three times a month, the ALJ accepted his
opinion that Patton would not be precluded from maintaining attention for two-hour segments,
maintaining regular attendance, being punctual within customary work tolerances, and making
simple work-related decisions. (Id.)

III.

STAND ARD OF REVIEW

A.

The ALJ's Decision

A reviewing court must uphold an ALJ' s decision if it is supported by "substantial
evidence." 42 U.S.C. § 405(g). "Where the ALJ's findings of fact are supported by substantial
evidence," the court is "bound by those findings, even if ... [it] would have decided the factual

7

8

Mr. Chaney's assessed GAF score was actually 50. (D.I. 12 at 529.)
See supra note 7.

8

issue differently." Fargonoli v. Massanari, 247 F.3d 34, 38 (3d. Cir. 2001).

"Substantial

evidence" means "more than a mere scintilla." Richardson v. Perales, 402 U.S. 389, 401 (1971)
(quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). "It means such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion." Id. The
inquiry is not whether the reviewing court would have made the same determination but, rather,
whether the ALJ's conclusion was reasonable. See Brown v. Bowen, 845 F.2d 1211, 1213 (3d
Cir. 1988). "Overall this test is deferential, and we grant similar deference to agency inferences
from fact if those inferences are supported by substantial evidence, even where this court acting
de novo might have reached a different result." Monsour Med. Ctr. v. Heckler, 806 F.2d 1185,
1190 (3d Cir. 1986). In Social Security cases, this substantial evidence standard applies to
motions for summary judgment. See Woody v. Sec '.Y of the Dep 't of Health & H_uman Servs.,
859 F.2d 1156, 1159 (3d. Cir. 1988).
IV.

DISCUSSION
Patton challenges the ALJ's decision on three grounds. First, Patton claims the ALJ

improperly rejected Mr. Chaney's Medical Source Statement. Second, Patton claims the ALJ
failed to address specific limitations in the RFC with respect to her assessed sit/stand option.
Third, Patton claims the ALJ posed an incomplete hypothetical question to the VE. Patton
requests reversal of the ALJ's decision with an award of benefits.
A.

Applicable Standards for Determining Disability

The Social Security Act defines "disability" as the inability "to engage in any substantial
gainful activity by reason of any medically determinable physical or mental impairment which
can be expected to result in death or which has lasted or can be expected to last for a continuous
period of not less than 12 months." 42 U.S.C. § 1382c(a)(3)(A). In order to qualify for DIB, the

9

claimant must establish that he or she was disabled prior to the date he or she was last insured.
20 C.F.R. § 404.131. In determining whether a person is disabled, the ALJ performs a sequential
five-step analysis. See 20 C.F.R. § 404.1520. The ALJ, the reviewing Appeals Council, and the
Commissioner evaluate each case according to this five-step process until a finding of "disabled"
or "not disabled" is obtained. See 20 C.F.R. § 404.1520(a). The process is summarized as
follows:
1. If the claimant currently is engaged in substantial gainful employment, he
will be found "not disabled."
2. If the claimant does not suffer from a "severe impairment," he will be
found "not disabled."
3. If the severe impairment meets or equals a listed impairment in 20 C.F.R.
Part 404, Subpart P, Appendix 1, and has lasted or is expected to last for a
continuous period of at least twelve months, the claimant will be found
"disabled." If a claimant does not suffer from a listed impairment or its
equivalent, the analysis proceeds to steps four and five.
4. If the claimant can still perform work he has done in the past ("past
relevant work") despite the severe impairment, he will be found "not
disabled."
5. Finally, the Commissioner will consider the claimant's ability to perform
work ("residual functional capacity"), age, education and past work
experience to determine whether or not he or she is capable of performing
other work in the national economy. If he or she is incapable, a finding of
disability will be entered. Conversely ifthe claimant can perform other
work, he will be found "not disabled."
Cunningham v. Apfel, No. 00-693-GMS, 2001WL1568708, at *4 (D. Del. Dec. 7, 2001)
(paraphrasing the five-step process for determining disability); see also Plummer v. Apfel,
186 F.3d 422, 428 (3d Cir. 1999).
The disability determination analysis involves a shifting burden of proof. See Wallace v.
Sec'y of Health & Human Servs., 722 F.2d 1150, 1153 (3d Cir. 1983). In the first four steps of
the analysis, the claimant bears the burden of proof. See Sykes v. Apfel, 228 F.3d 259, 263 (3d

10

Cir. 2000). At step five, however, the burden shifts to the Commissioner to determine whether
there is other substantial gainful employment in the national economy that the claimant can
perform. Id.

Substantial gainful employment is defined as "work that-(a) involves doing

significant and productive physical or mental duties; and (b) is done (or intended) for pay or
profit." 20 C.F.R. § 404.1510. When determining whether substantial gainful employment is
available, the ALJ is not limited to consideration of the claimant's prior work, but may also
consider any other substantial gainful activity that exists in the national economy. See 42 U.S.C.
§ 423(d)(l)(A), (2)(A); see also Heckler v. Campbell, 461 U.S. 458, 460 (1983).

B.

The ALJ's Credibility Determination of Mr. Chaney

The ALJ has the responsibility to conduct credibility determinations; therefore, the
district court may only dish:1rb the ALJ's determinations if they are not supported by substantial
evidence. Pysher v. Apfel, 2001 WL 793305, at *2 (E.D. Pa. July 11, 2001) (citing Van Horn v.

Schweiker, 717 F.2d 871, 873 (3d Cir. 1983)). Moreover, the court may not reweigh the various
medical opinions in the record; rather, the court's review is limited to determining if there is
substantial evidence to support the ALJ's weighing of those opinions. See Monsour Med. Ctr.,
806 F.2d at 1190. The court, however, cannot resolve whether substantial evidence supports a
credibility determination where the ALJ relied upon incorrect evidence and failed to indicate the
role that evidence played in discounting the opinion. See Jordan v. Colvin, No. 4:14CV00493
JLH-JTK, 2015 WL 2237646, at *3 (E.D. Ark. May 12, 2015).
Patton argues the ALJ improperly rejected Mr. Chaney's Medical Source Statement.

(D.I. 14-1 at 3.) Patton highlights that Mr. Chaney was her long-time treating therapist and that
he based the Medical Source Statement upon professional observations. (See D.I. 14-1 at 6-16.)
The Commissioner argues the ALJ was not required to accept Mr. Chaney's Medical Source

11

Statement as controlling because he is not an "acceptable medical source" and his opinion is
inconsistent with the treatment record. (See D.I. 20 at 11-12.)
The ALJ's credibility determination of Mr. Chaney reflects an error. Throughout her
decision, the ALJ erroneously reported that Mr. Chaney assigned Patton a GAF score of 60. 9
(See generally D.I. 11 at 23-24.) The record indicates a GAF score of 50. (D.I. 12 at 529.) This

is a significant mistake because a GAF score of 50 indicates a more significant degree of
impairment than one of 60. See Sojourner v. Astrue, No. CIV.A. 09-5662, 2010 WL 4008558, at
*3 (E.D. Pa. Oct. 12, 2010) (holding that misreading a GAF score by four points was not a
harmless error, since it could affect the RFC). According to the ALJ, Mr. Chaney's Medical
Source Statement was "not supported by [Patton's] GAF assessment of 60 by not only Mr.
Chaney but also Dr. Singh .... " (D.I. 11 at 24.) Not every mistake provides a basis for relief,
but this error requires a remand because the ALJ's decision does not indicate the role Mr.
Chaney's GAF score played in discrediting his opinion. See Jordan, 2015 WL 2237646, at *3.

Mr. Chaney's GAF score was not the only basis for discounting his Medical Source Statement,
therefore, the court cannot speculate about the role the mistake played in weighing the opinion;
only the ALJ can reconcile the mistake. Thus, the court cannot determine whether substantial
evidence supports the ALJ' s decision to afford Mr. Chaney's opinion little weight.
On remand, the ALJ shall reconsider Mr. Chaney's opinion and assign appropriate weight
to his conclusions.

9
Patton only raised the issue with regards to Mr. Chaney's credibility determination, however, the court
recognizes the ALJ used Mr. Chaney's erroneous GAF score throughout her decision. When affording Dr. Lifrak,
Dr. Singh, and Dr. Brice "significant weight," the ALJ claimed their opinions were "consistent with the record when
viewed in its entirety, including Mr. Chaney's treatment records showing a GAF rating of 60." (D.1. 11 at 23.)

12

C.

The Sit/Stand Option

Due to a claimant's specific physical limitations, an option to alternate between sitting
and standing during the workday is sometimes required. Where a claimant's RFC allows for less
than a full range of sedentary work, the RFC assessment must be specific as to the frequency of
the individual's need to alternate sitting and standing. See SSR 96-9p, 61 Fed. Reg. 34482 (July
2, 1996). 10
Patton argues the ALJ failed to address specific limitations in the RFC with respect to her
assessed sit/stand option. (D.1. 14-1at16.) The Commissioner asserts that any purported lack of
clarity was harmless, claiming the VE specifically testified at the first hearing that the jobs of a
'table worker' and 'final assembler' could be performed with a sit/stand option "at will." (D.1.
20 at 13.)
Although the ALJ limited Patton to a sit/stand option, there is no further specificity as to
how often she must shift between the two positions or whether it was "at will." (D.1. 11 at 19.)
This does not comply with SSR 96-9p's requirement of specificity with regard to frequency. At
the supplemental hearing, the VE claimed Patton could serve as a table worker, a final assembler,
or a bench hand. (Id. at 90.) These jobs would afford a sit/stand option, however, there was no
clarification concerning whether the sit/stand option was specifically limited or "at will." (Id. at
90.) Furthermore, contrary to the Commissioner's argument, the court finds the VE's testimony
at the first hearing to be ambiguous as to whether a 'table worker' and 'final assembler' could be
performed with an "at will" sit/stand option. 11 (Id. at 60-62.) The need to alternate sitting and
standing at specific intervals could further erode the sedentary occupation base. On remand, the

10

Available at http://www.socialsecurity.gov/OP_ Home/rulings/di/O l/SSR96-09-di-O I .html.
The ALJ did not ask whether a 'table worker' or 'final assembler' specifically had an "at will" sit/stand
option. (D.I. 11 at 61-62.) The VE only specified that the positions of a 'mailroom clerk,' 'collator,' and
'photocopy machine operator' had an "at will" sit/stand option. (Id. at 60-61.)
11

13

ALJ should clarify the frequency of Patton's need to alternate sitting and standing, and whether
this need is "at will."
D.

The Hypothetical Question

The hypothetical question presented to the VE must reflect all of the claimant's
impairments supported by the record; a hypothetical question omitting credibly established
limitations is defective and the answer provided cannot constitute substantial evidence. See
Rutherford v. Barnhart, 399 F.3d 546, 554 (3d Cir. 2005).

Patton argues the ALJ posed an incomplete hypothetical question to the VE by failing to
convey (1) Mr. Chaney's assessed limitations, and (2) Patton's "moderate" limitation in
maintaining concentration, persistence or pace. (D.I. 14-1 at 18-19.) The Commissioner argues
the ALJ's hypothetical accounted for Patton's "moderate" limitations in concentration,
persistence, or pace. (D.I. 20 at 13.) Although the court agrees with the Commissioner that the
ALJ's hypothetical accounted for "moderate" limitations in concentration, persistence, or pace,
in light of the court's decision to remand, the court makes no ruling on whether the ALJ poS.ed an
incomplete hypothetical question to the VE.
With regards to Patton's mental impairments, the ALJ limited her to "simple, routine,
unskilled work with less than occasional interaction with the general public and supervisors and
would have difficulty accepting criticism from supervisors." (Id. at 19.) The ALJ specifically
explained in the decision that the restrictions set forth in the hypothetical question accounted for
Patton's moderate limitations in maintaining concentration, persistence or pace. (D.1. 11 at 25.)
The Third Circuit has held that a hypothetical question limiting the claimant to simple, routine
tasks adequately accounted for moderate limitations in concentration, persistence or pace. See
McDonald v. Astrue, 293 F. App'x 941, 946 (3d Cir. 2008). "Unskilled work" consists oflittle

14

to no judgment and simple duties. See 20 C.F.R. §§ 404.1568(a), 416.968(a). Despite these
findings, the court recognizes the ALJ's hypothetical question may be affected by Mr. Chaney's
credibility determination on remand. In forming Patton's RFC, the ALJ stated, "In terms of the
claimant's alleged mental problems, both Dr. Singh and Mr. Chaney assessed GAF scores of 60,
indicative of borderline mild to moderate symptoms or limitations."

(D.I. 11 at 22.)

As

previously discussed, the ALJ's reasoning reflects a mistake. Furthermore, at the supplemental
hearing, the VE testified that no jobs would be available for Patton when encapsulating Mr.
Chaney's assessed limitations. (D.I. 11 at 92-93.)
In accordance with the court's decision to remand, the ALJ shall reconsider Mr. Chaney's
opinion and assign appropriate weight to his conclusions. Once the ALJ reconsiders the opinion,
the AU shall reassess Patton's RFC and determine whether work exists that Patton can do. The
ALJ may exercise discretion in determining whether to obtain updated medical evidence.

V.

CONCLUSION
For the foregoing reasons, the court grants Patton's motion for summary judgment and

denies the Commissioner's motion for summary judgment. This matter is remanded for
additional administrative proceedings.

Dated: July/{)_, 2015

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